Six months into President Obama's term, the Senate has confirmed no judges or U.S. attorneys, and several executive branch nominees have been in limbo for months. Members of the administration and both parties in Congress are blaming each other for the slow down.
It has been three months since the Senate last confirmed a Justice Department nominee. The man nominated to lead the U.S. Sentencing Commission has been waiting for a vote since early May. Ten nominated judges and 13 U.S. attorney nominees are also in a holding pattern.
"Democrats should be motivated to get this done," says Robert Raben.
He ran the Justice Department's Office of Legislative Affairs in the 1990s.
"We've got recent experience with our last Democratic president that not moving as quickly as possible pays an enormous price," he says.
Two years into the Clinton presidency, Democrats lost control of Congress, and the confirmation process became much harder.
Political Payback For Sotomayor?
Senate Democrats say they're trying. They blame Republicans for the delay.
"Republican objections have prevented the Senate from confirming nominees reported by the Judiciary Committee for over two months, since May 12th," said Senate Judiciary Committee chairman Patrick Leahy of Vermont at a hearing Wednesday morning.
The list of pending nominees includes people with strong Republican support, such as the U.S. attorney nominee for Alabama. Joyce Vance is sponsored by Republican Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee. She was voted out of committee on June 18 and has been waiting since then for the full Senate to take up her nomination.
Several people from both sides of the aisle say congressional Republicans are punishing Democrats for the timing of Supreme Court nominee Sonia Sotomayor. Republicans wanted to vote on Sotomayor in September, but Democrats scheduled the vote for early August. Congressional staffers and administration officials say Republicans are retaliating by blocking votes on every other nominee.
Republicans in Congress say that was the Democrats' choice. And some Republicans who are not in Congress say the Democratic leadership is being too weak.
"I would think that the Democrats could cut through the morass," says former Acting Attorney General Stuart Gerson.
Competing Democratic Priorities
The Senate Democratic caucus has 60 votes — enough to overcome a filibuster if everyone bands together.
But Democratic leaders say even if they break a filibuster, Republicans then have 30 hours to debate. Those delays can interfere with other priorities, such as health care, Sotomayor and appropriations.
Gerson believes President Obama could also move this along.
"If there were more nominees from the White House, probably it would be easier," he says.
Some Senate Democrats agree. Judiciary Committee members have said that a huge backlog of nominees would provide leverage to complain about the pace of confirmations. Six months into the last administration, President Bush had nominated 34 judges — more than three times as many as this administration.
The White House rejects that argument. They say a long list of unconfirmed nominees doesn't help anybody, but they appear to be alone in that view.
The White House is doing no worse at getting people confirmed than previous administrations at this point. Presidents Bill Clinton and George W. Bush had their first U.S. attorneys confirmed in September. The first Bush judges were confirmed in July.
Why Vacancies Matter
But administration officials privately concede they should be farther along because the situation here is different. The Bush administration had a slow start because the Supreme Court didn't decide the presidency until December. President Clinton had no attorney general until March. The Obama administration has no such excuse, and their party has a much bigger majority in the Senate than Clinton or Bush did.
Democrats say the confirmations matter for several reasons. In the federal judiciary, there will soon be more than 100 vacancies. Leaving those positions unfilled puts a strain on the judicial system. Democrats also say filling those empty jobs would help tilt the balance of a judiciary dominated by Republican appointees.
In a U.S. attorney's office, a presidential appointee can help carry out a new administration's agenda.
"It's always at the beginning of the administration when there's a new energy, a new focus and a setting of new priorities," says Matt Orwig, who was a U.S. attorney in Texas under President George W. Bush. "I think the Obama administration has lost that opportunity."
Some Democrats share that view.
"It's very important for morale that the new person be in place," says Donald Stern.
He was President Clinton's U.S. attorney in Boston and served on the Obama Justice Department transition team. "The ship doesn't run quite as smoothly without the new person being there," Stern says.
One former senior Justice Department official who is now in private practice describes the situation this way: "I have three cases where the Justice Department is going after my clients in different cities. A year ago, I had six or seven lawyers working on them. Since January, the cases all just went to sleep."
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